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Five tribal councils, representing nearly 80 percent of the population of the Great Sioux Nation, ratified the report, "Reviewing the Facts," during a January 23-25 meeting in Pierre, South Dakota. (Courtesy Lakota People’s Law Project)

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South Dakota Sex-Abuse Perjury Case Collapses

Stephanie Woodard

2/1/13

Courtroom observers in Aberdeen, South Dakota, applauded after Judge Gene Paul Kean dismissed perjury-related charges against former deputy state’s attorney Brandon Taliaferro and court-appointed special advocate Shirley Schwab on January 10. “Supporters, including observers from several tribes, cheered, clapped and hugged each other,” said Daniel Sheehan, general counsel of advocacy group Lakota People’s Law Project.

The state had charged the two child-welfare advocates with felonies and misdemeanors for allegedly getting four Lakota children to lie about sexual abuse and cruelty by the children’s adoptive parents. The non-Native couple had fostered and then adopted the children after South Dakota’s department of social services took them from their Lakota birth families, starting in 1999. “The evidence presented is so lacking that as a matter of law the case should be dismissed,” said Judge Kean after the state rested its case in the four-day proceeding.

Commenting on the prosecution of Taliaferro and Schwab, Sheehan charged that it was “retaliatory.” By uncovering evidence of abuse by non-Native foster/adoptive parents—which put the father of the four children in jail for 15 years for rape—the two whistleblowers had cast an unwelcome light on South Dakota’s social-services operation, which takes Lakota children from their homes at disproportionately high rates and places them almost entirely in non-Native care, according to Sheehan.

In the courtroom were representatives from Sioux tribes throughout the state. One was Standing Rock councilwoman Phyllis Young. “I heard the graphic details of the abuse described,” she said. “It was horrifying.” During a recess in the trial, she said, the tribal representatives went to the Bureau of Indian Affairs (BIA) Aberdeen district office and talked about the need for a summit on Indian-child-welfare issues. “We all went—every one of us—from Oglala, Sisseton, Standing Rock, Yankton, Cheyenne River,” said Young. “We told the bureau, ‘We have grave concerns about what is going on in Lakota country. We have to move on this issue.’”

As terrible as the ordeal was for Taliaferro and Schwab, their prosecution appears to have been a turning point for Indian-child-welfare issues in the state. Since the proceeding, Young said, the Standing Rock tribal council has met to consider a lawsuit against the state. The tribe will also hold child-welfare hearings in its eight communities. On the Pine Ridge Indian Reservation, the Oglala tribal council has placed a discussion of child-welfare and foster-care issues on its upcoming agenda. “We are very concerned,” said a tribal executive-committee staff member.

“Officials of the state are involved in nothing less than a federal criminal conspiracy to discriminate against Lakotas and to unlawfully retaliate against any non-Indian people who attempt to defend them, including Taliaferro and Schwab,” said Sheehan.

Tribes connect with Congress

Native children are about 13 percent of South Dakota’s child population but more than 50 percent of those in foster care, according to a new report, Reviewing the Facts, produced by a coalition of Sioux tribes in the state and sent to members of Congress on January 30. South Dakota places about 90 percent of the Native kids it takes into care into non-Native homes and group facilities. The report charges that the state does this to capture a greater share of federal foster-care dollars and funnel those funds into the non-Native community.

Tribes prefer kinship care, which allows foster children to live with relatives, maintains children’s cultural ties and ensures the ongoing existence of the community. However, kinship care generates no federal foster-care funding for the state, according to the report.

The cover letter of Reviewing the Facts ends with a plea: “We hope…you will work with us to implement solutions to the cruel and unjust conditions faced by our children and families in South Dakota. We, too, are human beings.”

South Dakota Department of Social Services spokeswoman Kristin Kellar disputed the notion that the state is benefitting unduly from federal foster-care dollars, saying, “The state must provide state funds or a match for all federal funds used to pay for care. Having more kids in care only increases the state’s financial commitment to them.”

The ICWA directors who wrote Reviewing the Facts are tribal officials tasked with enforcing the Indian Child Welfare Act, passed by Congress in 1978 to help keep Indian children in their Native communities. While considering the legislation, Congress learned from testimony that as many of 35 percent of Native children had been taken from their tribes under federal-, state- and church-run programs intended to assimilate them.

Reviewing the Facts exhaustively fact-checks and endorses a 2011 National Public Radio broadcast that documented South Dakota taking large numbers of Sioux children into foster care under questionable circumstances. Though criticized by South Dakota officials, the broadcast caused concern in Congress, along with demands from Congressman Ed Markey (D-MA) for a BIA summit on the matter and, from Congressman Tom Cole (R-OK) and others, a call to send federal attorneys to help South Dakota tribes enforce ICWA.

When Markey and Congressman Ben Ray Lujan (D-NM) got word of a draft version of the report in December 2012, they expressed alarm about what they called the worsening plight of South Dakota’s Native children and the possible “misappropriation of federal dollars to state coffers.” They sent a strongly worded letter to the BIA, demanding it look into the matter. “This has gone on long enough,” said Markey, top Democrat on the House Natural Resources Committee, which has jurisdiction over Indian affairs. Luhan is the ranking member of the subcommittee on Indian and Alaska Native affairs.

Cole commended the ICWA directors for taking action on the issue, saying, “Leadership from South Dakota tribal authorities is vital to keeping focus on the children and families endangered by unacceptable ICWA violations.”

On January 25, the BIA met with tribal officials in Pierre, South Dakota, to plan a foster-care summit. Tribal attendees included Chairman Bryan Brewer, of the Oglala Sioux Tribe, Vice Chairman Eric Big Eagle, of the Crow Creek Sioux Tribe, and Vice Chairwoman Ida Ashes, of the Yankton Sioux Tribe, along with tribal council members Robin Lebeau, from Cheyenne River Sioux Tribe, Webster Two Hawk, from Rosebud Sioux Tribe, Leah Fyten, from Flandreau Santee Sioux Tribe and Young of Standing Rock.

Young didn’t expect people to tell personal stories of problems with the foster-care system. “I thought it was just a planning meeting,” she said. However, attendees shared tales of losing children and grandchildren. Young said tribal members are determined to bring attention to the travesty and injustice. “Our children have a right to grow up in safety and security.”

The summit is scheduled for mid-April in Rapid City, according to Sara Nelson, executive director of Lakota People’s Law Project, which facilitated the meeting. The BIA and Casey Foundation will sponsor it, and representatives of those organizations, officials of South Dakota tribes, tribal members with relatives taken into care, the state’s Department of Social Services and others will be invited. The social services department did not respond to a request for information on whether it will attend.

“The Bureau of Indian Affairs is actively engaged in the planning process,” said the agency's spokesperson, Nedra Darling. “We are working in partnership with the group that's been formed to organize the meeting, the South Dakota ICWA Directors' Coalition of Sioux Tribes for Children and Families.”

Frank LaMere, a prominent expert on ICWA issues nationwide and member of the Winnebago Tribe of Nebraska, recently called South Dakota the poster child for what is wrong in the child-welfare system. “And federal officials are watching. Do South Dakota’s officials not understand that?”

“We will not rest until we know what is going on with Lakota children in South Dakota,” said Nelson. “People at the Taliaferro and Schwab trial asked, ‘How can this be going on?’ As the public becomes increasingly aware, more will ask this question.”

FOLLOW THE MONEY

In the U.S., South Dakota is third among states for dependence on the federal government. Federal subsidies make up 45.6% of its $4-billion annual budget, shows a 2012 analysis from the Tax Foundation, a nonpartisan research group. Meanwhile, Washington supplies nearly two-thirds, or $660 million, of the $1 billion South Dakota’s Department of Social Services spends annually for all population groups.

Daniel Sheehan, general counsel of advocacy group Lakota People’s Law Project, said the social-services agency refuses to provide a breakdown of the $660 million in federal social-services funding, so the public can know how much is for Native children’s foster care. However, Sheehan noted, writers of a new tribal report, “Reviewing the Facts,” examined the state budget and calculated that Native foster children—just 13 percent of South Dakota’s child population but more than 50 percent of the foster population—must be drawing significant federal funding for the state. “This includes $55 million for Children’s Services, $48 million to fund foster children’s health care, and $4 million for administration [which] demonstrates a strong financial incentive for state officials to take high numbers of Native American children into custody,” wrote the report’s authors, who are tribal officials tasked with enforcing the Indian Child Welfare Act.

South Dakota Department of Social Services spokeswoman Kristin Kellar said the agency complies fully with ICWA and does not take children from their families just to get more federal foster-care funding. “There is no question that these sad situations, in which a court decides that a child needs to be removed from the home, do more economic harm to society than whatever paltry amount of funding the federal government expends to support foster care,” she said.

ICWA expert Frank LaMere, Winnebago Tribe of Nebraska, has long scrutinized Indian-child-welfare practices in the states, including South Dakota. “Our children feed the system. They always have. Congress and the Justice Department need to quit sitting on their hands and hold accountable those who’ve allowed this to happen.”

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